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Hamptons.com
May 20, 2014

Mortgage Woes: Can I Lose My Deposit And The Property?

John A. Viterittiby John A. Viteritti
in Real Estate
Home Real Estate

In our last article, “Buyer Beware,” I made reference to a court ruling, Estrada v. Metropolitan Property Group, in which the Manhattan Supreme Court found that the purchaser/borrower who relied on the space measurements in the appraisal report did so at his peril. The appraisal, done for the lender, did not relieve the purchaser/ borrower of his obligation to perform his due diligence. According to the court: “Plaintiff could have easily measured the apartment for himself.” The decision was affirmed on appeal.

Well what about a mortgage or loan commitment issued by a bank? Is there a difference between that and a funding commitment? According to Alfred M. Fazio, Esq., of the law firm, Capuder, Fazio, and Giaccoia, there is, “You have worked with a prospective purchaser for the past several months and finally your hard work has paid off because the purchaser has signed a contract and put down the required ten percent deposit. The purchaser has allegedly been pre-approved by a lender. Unfortunately for you and the purchaser, the commitment is anything but what it claims to be because it is subject to several paragraphs of requirements and conditions.”

What if one or more of these conditions have not been met, such as the purchaser’s employment status has changed. Is the purchaser entitled to get his deposit back? Again, let’s hear what Mr. Fazio has to say, “Pursuant to the standard form of a coop or condo contract or one to two family contract, a commitment which is conditional upon any factor other than an appraisal is considered a firm commitment and the purchaser cannot cancel the contract. Once a commitment is issued by the bank or mortgage company, if the bank does not complete the transaction for any reason other than a below market appraisal, the purchaser can be held in default and lose her deposit. The standard form of contract of sale contains a mortgage or loan contingency, not a funding contingency.”

North Fork attorney, William H. Price, Jr. advises, “The differing interests of the Seller and Buyer and the pitfalls facing both make it a necessity to thoroughly review the contract and your circumstances with your attorney.”

Ed Reale, Senior Managing Director, Brown Harris Stevens, Southampton, and New York attorney says, “The heightened scrutiny given lenders under the new ‘Truth in Lending Ability to Repay’ mortgage standards have imposed a heavier burden on borrowers to prove their qualifications for a mortgage, sometimes right up to the time of closing.”

A question may arise, if the seller gets to keep the deposit, is the seller’s broker entitled to receive a percentage of the deposit equal to the percentage of the sale price? Case law says, only if the listing agreement between the seller and the broker states that.

Mr. Fazio further advises, “If you are acting as a buyer’s agent, with the requisite fiduciary obligations, you are held to a higher standard and your involvement in the loan or mortgage process will determine whether you will be named in a lawsuit should the purchaser attempt to recoup his deposit from the seller.”

A lesson to be learned is, do not presume, based on logic, or what you might think is fair, and just. Seek the assistance of qualified professionals. The price you pay will be well worth the benefit.

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LOCAL EVENTS

Events

09
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A Legendary Day at Sebonack!

September 9 @ 08:30 AM - September 9 @ 05:00 PM
Sebonack Golf Club - 405 Sebonac Rd, Southampton, NY 11968
09
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09
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Youth Advisory Committee (YAC)

September 9 @ 06:30 PM - September 9 @ 08:00 PM
25 Ponquogue Ave., Hampton Bays, NY 11946
11
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THFM 2025 Festival Concert #2

September 11 @ 07:00 PM - September 11 @ 09:00 PM
St. Luke's Episcopal Church East Hampton Village, 18 James Ln, East Hampton, NY 11937
13
Sep
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Tour of the Beebe Windmill with Southampton Town Historian Julie Greene

September 13 @ 11:00 AM - September 13 @ 12:00 PM
Beebe Windmill, Hildreth Ave, Bridgehampton, NY 11932
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The Bridge IX

September 13 @ 02:00 PM - September 13 @ 07:00 PM
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Mark Your Calendar: Ten Hamptons Memorial Day Weekend Events

Mark Your Calendar: Ten Hamptons Memorial Day Weekend Events

  • I recently toured the new Rolex Boutique by London Jewelers in East Hampton, and it’s one of the most beautiful retail spaces I’ve ever stepped into. Located on Newtown Lane, the boutique is set inside a restored historic home that dates back to 1897, originally designed as a summer cottage.⁠
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From the outside, it has that classic East Hampton charm, cedar shingles, white trim, and lush landscaping. But once you step inside, it’s all about quiet sophistication.⁠
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The space is warm and welcoming, with walnut wood paneling, soft neutral tones, and beautiful textures throughout. There’s a fluted marble wall in a rich green Verdi Alpi stone that immediately catches your eye. It’s one of those details that’s understated but unmistakably Rolex.⁠
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Read the full article at Hamptons.com (Link in Bio)⁠
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#rolex #easthampton #hamptons #luxury #watch⁠
  • 🎾 Men’s US Open Final Viewing Party⁠
📅 Sun, Sept 7 • 2–5PM⁠
📍 Canoe Place Inn, Hampton Bays⁠
Watch the riveting Men’s US Open Final with drinks, grilled classics & fellow tennis fanatics in the lush garden.⁠
⁠
🦞 Montauk Seafood Festival⁠
📅 Sat, Sept 6 – Sun, Sept 7 • 12–5PM⁠
📍 On the Green, Montauk⁠
The ultimate seafood event in the Hamptons! Lobster rolls, fish tacos, chowder, oysters & more 🐚🍤⁠
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🩰 Master Class w/ Kat Wildish⁠
📅 Sat, Sept 6⁠
📍 Hamptons Ballet Theatre School, Bridgehampton⁠
Open-level adult ballet class with world-renowned former NYCB & ABT dancer Kat Wildish. One day only!⁠
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🎶 Hamptons Festival of Music⁠
📅 Sat, Sept 6 • 7PM⁠
📍 St. Luke’s Episcopal Church, East Hampton⁠
THFM’s MainStage Festival Orchestra featuring The New American Sinfonietta 🎻✨⁠
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🌾 Outstanding in the Field (Sagaponack)⁠
📅 Sun, Sept 7 • 3PM⁠
Dine where the food is grown! Guest chef Jason Weiner returns for his 19th year 🍽️🌱⁠
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😂 Samantha Bee Live⁠
📅 Sat, Sept 6 • 8PM⁠
📍 WHBPAC, Westhampton Beach⁠
Award-winning comedian Samantha Bee brings her one-woman show to the Hamptons!⁠
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🍴 Stirring The Pot: Andrew Carmellini⁠
📅 Sun, Sept 7 • 11AM⁠
📍 Guild Hall, East Hampton⁠
NYT’s Florence Fabricant interviews star chef Andrew Carmellini about his restaurant empire.⁠
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🌕 Full Harvest Moon Hike⁠
📅 Sun, Sept 7 • 7:30PM⁠
📍 Meet at SOFO Museum, Bridgehampton/Sag Harbor Tpke⁠
Walk under the moonlight with Friends of the Long Pond Greenbelt 🌙✨⁠
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🎨 Style Beading Workshop⁠
📅 Fri, Sept 5 • 1PM⁠
📍 Nathaniel Rogers House, Bridgehampton⁠
Join Indigenous artist Savannah LeCornu to learn traditional beading techniques.⁠
⁠
⛳ A Legendary Day at Sebonack!⁠
📅 Tues, Sept 9 • 8:30AM–5PM⁠
📍 Sebonack Golf Club, Southampton⁠
An unforgettable day of golf supporting Westhampton Beach PAC 🌟⁠
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👉 Which event are you going to this weekend?⁠
⁠
Check out more events at Hamptons.com (Link in Bio)⁠
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#community #entertainment #hamptons #usopen #golf #comedy #seafood #montauk
  • Hamptons fashion week was hosted at Zoe Hospitality Private Membership Club, featuring designer Johnny Was, Porshia Swim, Vernice Holmes, Atelier H, Cesar Galindo, SixyByVenice and Ines Hernandez Hats.

#hamptonsfashionweek
  • As the summer comes to an end, it’s time to find out what everyone was reading this summer.
  • Brook Sheilds celebrates the launch of her hair care brand for women over 40 by making stops at some of her favorite stops in the Hamptons. The stops include The Hub, Clare V and Jones Road. Brooke personally handed out the Shine-Enhancing Detangler to the first 25 people at each stop.

#commence #brookeshields
  • Although Mavericks has only been open for two years, it has quickly become a Montauk staple beloved by locals and summer vacationers. Under the helm of Executive Chef and Montauk local Jeremy Blutstein, Mavericks stands out in the Hamptons restaurant scene with large-format dishes, sunset views, and an elegant ambiance marked by an exclusive contemporary art collection.⁠
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Hamptons.com caught up with Jeremy to talk about his favorite dish, Mavericks’ menu, and his go-to lunch spot.⁠
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When did you first realize you wanted to be a chef?⁠
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I wouldn’t say there was a defining moment when I knew I wanted to be a chef. I do know that the first time I worked in a restaurant, I was hooked on the whole experience. I was a teenager at The Farmhouse Restaurant in East Hampton (which is now Moby’s). The structure within the chaos was intoxicating, and we had to make everything happen because there was no other option. Thriving in those high-stress environments was like a drug.⁠
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What’s your favorite dish to cook and why?⁠
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I don’t come from a cooking family, so I don’t have any go-to Grandma’s recipes or food traditions. I’ve always been drawn to what’s available at the moment. I grew up with my very dear friend Alex Balsam (from Balsam Farms in Amagansett), who has been obsessed with farming as far back as our 35-year friendship began. He taught me where and who our food comes from. I’m also a big believer in the old “keep it simple stupid” mantra. Honest ingredients seasoned well and cooked with honest intentions. ⁠
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Read the full interview at Hamptons.com (Link in Bio)⁠
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#mavericks #montauk #chef #dining
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